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UNITED STATES EX REL. ROCKMAN v. DEROBERTIS

June 2, 1989

UNITED STATES OF AMERICA ex rel. CLAYTON ROCKMAN, Petitioner,
v.
RICHARD DEROBERTIS, Respondent


James H. Alesia, United States District Judge.


The opinion of the court was delivered by: ALESIA

JAMES H. ALESIA, UNITED STATES DISTRICT JUDGE

 Petitioner, Clayton Rockman ("Rockman"), is currently a prisoner in state custody. Rockman has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent, Richard DeRobertis ("DeRobertis"), warden of the prison at which Rockman is incarcerated, has responded to Rockman's petition by filing a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth in this order, Rockman's petition for a writ of habeas corpus is denied and DeRobertis' motion for summary judgment is granted.

 I. PROCEDURAL HISTORY

 Following a jury trial, Rockman was convicted of murdering Alfonso Alaya ("Alaya") on January 25, 1981. Rockman was subsequently sentenced to a term of 75 years imprisonment. He is currently serving his sentence at Pontiac Correctional Center in Pontiac, Illinois.

 Rockman appealed his conviction to the Illinois Appellate Court on several grounds, including: (1) that the trial court improperly admitted certain identification testimony; (2) that the prosecutor was guilty of misconduct; (3) that Rockman's trial counsel was incompetent; and, (4) that the evidence adduced at trial was insufficient to support his conviction. The Illinois Appellate Court rejected Rockman's arguments and affirmed his conviction. People v. Rockman, 144 Ill. App.3d 801, 494 N.E.2d 688, 98 Ill. Dec. 566 (1st Dist. 1986). Rockman then sought leave to appeal to the Illinois Supreme Court. The Illinois Supreme Court denied Rockman's petition for leave to appeal.

 Having properly exhausted his state court remedies, Rockman petitioned this Court for habeas corpus relief pursuant to 28 U.S.C. § 2254, raising many of the same arguments advanced in the state appellate court. Here, Rockman asserts the following grounds of error: (1) that the trial court's improper admission of certain identification testimony violated his right to due process of law; (2) that he received ineffective assistance of counsel, in violation of his Sixth Amendment right to counsel; and, (3) that certain remarks made by the prosecutor deprived him of a fair trial. We set forth the facts and address each of these arguments in turn.

 II. FACTS

 On January 25, 1981, Ayala and Gustavo Medrano ("Medrano") sat at the bar in Bonnie's Tavern located on the southwest side of the City of Chicago. The two men, along with two other patrons and the bartender, watched the Super Bowl. At approximately 2:30 p.m., two black men simultaneously entered the tavern. One, later identified as Rockman, entered the side door, while the other entered through the front door. Upon entering the tavern, Rockman inquired about the location of the washroom. Suddenly, Rockman pulled out a silver-plated gun and began shooting at Medrano and Ayala. The other man produced a shotgun and also began shooting. Medrano and Ayala dove under the pool table in the bar to protect themselves. As Medrano lay beneath the pool table next to Ayala, Medrano saw Rockman walk over to Ayala and shoot Ayala several times at close range. Both Rockman and his accomplice then fled the bar. After they left the bar, Medrano raced to the window and saw a white car with a dark red top speeding away. Someone in the tavern called the police and Medrano and Ayala were taken to a nearby hospital. Ayala died of multiple gunshot wounds. Medrano was treated for a gunshot wound to the back and was released.

 After conducting an investigation, the police located two individuals who corroborated various details of the incident. The first individual was Juan Saucedo ("Saucedo"), who lived three blocks from Bonnie's Tavern. Earlier in the day, Saucedo encountered two black men not far from Bonnie's Tavern. Because the neighborhood was predominantly Hispanic, Saucedo asked the two men what they were doing in the neighborhood. Saucedo spoke with the men for several minutes. He then watched them drive away in a white car with a dark red or purple top. The second individual was Edward Stringer ("Stringer"), who lived approximately one block from Bonnie's Tavern. Stringer told the police that while he was shoveling snow outside of his house at approximately 2:30 p.m. on the day of the murder, he heard gunshots coming from the tavern. Shortly thereafter, Stringer saw two black men run from Bonnie's Tavern and speed away in a white car with a dark red or purple top. Stringer was able to see the license plate number of the car and copied down the number. Stringer gave this number to the police.

 One month after the murder, Medrano identified Rockman in a photo array as the man he had seen shoot Ayala. Saucedo also identified Rockman in a photo array as the man to whom he had spoken on the day of the murder. Both men also identified the car seen on the day of the murder at the police auto pound. The license plate and license application sticker found on the car described by the witnesses were registered to Rockman, but for a different car.

 In May, 1981, the police found the murder weapon in a St. Louis motel room, along with a photograph of Rockman with a woman. The woman found in the motel room was not the woman in the photograph. Ballistics evidence confirmed that the gun found in the motel room was the murder weapon. In December 1981, the police located Rockman in California and he was extradited to Chicago.

 On January 6, 1982, Medrano identified Rockman in a line-up identification as the man he had seen in the bar on the day of the murder. Medrano also identified Rockman in court during a preliminary hearing in January, 1982.

 A jury ultimately found Rockman guilty of the murder of Ayala and Rockman was sentenced to a term of 75 years imprisonment. Currently in state custody serving his sentence, Rockman now seeks habeas corpus relief from this court on a variety of grounds. We address each of them in turn.

 III. IN-COURT IDENTIFICATION

 Rockman first seeks relief based upon the trial court's admission of Medrano's in-court identification. Rockman argues that no independent basis for the in-court identification existed and, therefore, that the trial court should have excluded it. In a pretrial motion to suppress the in-court identification, Rockman contended that the identification was based upon a previously suppressed line-up identification *fn1" and lacked a sufficient independent basis to be admissible. After a hearing on the motion to suppress, the trial court concluded that Medrano's in-court identification had an independent basis and was not merely the "fruit" of the suppressed line-up identification. *fn2" Consequently, the court allowed the in-court identification. On appeal, the Illinois Appellate Court upheld this ruling.

 In reviewing whether that decision was erroneous, this court initially notes that a "presumption of correctness" applies to findings of fact made by a state appellate court. United States ex rel. Hancock v. McEvers, 619 F. Supp. 882, 884 (N.D.Ill. 1985). To overcome this presumption, a party must meet one of the conditions set forth in § 2254(d) *fn3" or show "by convincing evidence" that the state court's decision was "clearly erroneous." See 28 U.S.C. § 2254(d). Because Rockman has not established that he has satisfied any of the conditions set forth in § 2254(d), we treat the Illinois Appellate Court's factual findings on this issue as presumptively correct. We therefore examine whether the court drew the proper conclusions from those facts based on the applicable law.

 In order to determine whether the in-court identification was based upon an impermissively suggestive pretrial confrontation, a two-part test must be applied. See United States ex rel. Moore v. Illinois, 577 F.2d 411, 413 (7th Cir. 1978), cert. denied, 440 U.S. 919, 59 L. Ed. 2d 471, 99 S. Ct. 1242 (1979). First, the court must determine the reliability of the in-court identification despite a suggestive pretrial confrontation. See Manson v. Brathwaite, 432 U.S. 98, 109-114, 53 L. Ed. 2d 140, 97 S. Ct. 2243 (1977). Second, the court must determine whether the in-court identification rested upon observations independent of the tainted pretrial identification. See United States v. Wade, 388 U.S. 218, 239-42, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

 A. Reliability of In-Court Identification

 In Manson, the Court identified five factors to be considered in determining the reliability of a witness' in-court identification:

 
1. the witness' opportunity to view;
 
2. the witness' degree of attention;
 
4. the witness' level of certainty; and
 
5. the time between the crime and the ...

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